Be prepared

The highly skilled migrant’s residence permit is issued for the duration of the employment contract or, if the contract is for an indefinite period, for a maximum of five years. However, several situations can occur to jeopardise residence status. For instance:

1. The employee’s temporary employment contract is not extended. The residence permit is issued for the duration of the employment contract. Once the employment contract ends, unfortunately the right of residency expires as well.

2. The employee changes job. Changing jobs is permitted, however, the new employer must be a participant in the IND’s highly skilled migrant scheme and must comply with the salary criterion that applies to the hiring of highly skilled migrants. For more see the IND’s website.

3. The employer wishes to terminate the employment contract prematurely. The Aliens Act maintains a strict rule: a foreign national who loses his/her job ‘culpably’ also loses his/her right of residence. This may include cases of summary dismissal, notice of dismissal against which the employee has not protested or, most commonly, the situation in which an employee signs a settlement agreement with the employer in which the parties agree to end the employment contract with compensation.

Even if the settlement agreement includes a provision specifying that the employee was not at fault, by signing the agreement the employee will have consented to his/her dismissal and will therefore, according to the legislation, be ‘culpable’. In such cases, the right of residence will therefore expire.

In cases of dismissal without ‘culpability’, the dismissed highly skilled migrant will be entitled to a three-month period in which to look for work. He/she will have a valid residence permit during this period, therefore, it is also possible to request unemployment benefits.

What to do when facing the risk of dismissal

Make sure you take advice from a specialist in labour and immigration law before signing any settlement agreements; there are always alternatives. For example, an employer may submit a request for dismissal to UWV WERKbedrijf or the district court. If the request is carried out in the correct way, the employer can terminate the contract and the employee will retain his/her right of residence for at least three months. This will enable the employee to look for a new job within this time period.

Article provided by Expatcenter Partner De Vreede Advocaten.